Judge Upinder S. Kalra, Case Number: 22STCV33162, Date: 2023-08-25 Tentative Ruling

1. Demurrer to the second, sixth, seventh, and ninth causes of action for failure to state facts sufficient to constitute a cause of action;

On October 11, 2022, Plaintiffs Samantha Rosales and Sergio Benitez (“Plaintiffs”) filed a complaint against Defendant Marissa Aguilera (“Defendant.”) The complaint alleged 10 causes of action: (1) Breach of Warranty of Habitability, (2) Private Nuisance, (3) Breach of Covenant and Right to Quiet Enjoyment and Possession of Premises, (4) Negligence, (5) Violation of Los Angeles County Eviction Moratorium- Failure to Pay Relocation, (6) Violation of Los Angeles County Eviction Moratorium- Harassment, (7) Intentional Infliction of Emotional Distress, (8) Negligent Infliction of Emotional Distress, (9) Violation of Civil Code § 1940.2, and (10) Violation of Business & Professions Code § 17200, et seq.

The complaint alleges that Plaintiffs were tenants of the Subject Property, which is owned by Defendant. During their tenancy, Plaintiffs experienced various issues with the premises, including uneven flooring, water damage, faulty electrical system resulting in fire, unpermitted plumbing, and insect problems. Moreover, Plaintiffs also allege that Defendant attempted to intimidate them to leave the premises on various occasions.

On March 28, 2023, Plaintiffs filed a First Amended Complaint (FAC) with the same causes of action as the Complaint.

On August 25, 2023, the court SUSTAINED Defendant’s demurrer with leave to amend as to the second, fifth, seventh, and tenth causes of action, but OVERRULED Defendant’s demurrer as to the first, third, fourth, sixth, eighth, and ninth causes of action. Additionally, the court GRANTED in part Defendant’s motion to strike.

On September 15, 2023, Plaintiffs filed a Second Amended Complaint (SAC). Additionally, Plaintiffs filed Fictitious/Incorrect Name Amendments as to DOE 1 (Gregorio Alvarez), DOE 2 (Maria C. Alvarez), DOE 3 (Maria Alvarez), and DOE 4 (Carlos Alberto Gomez). The SAC has nine causes of action for: (1) Breach of Warranty of Habitability, (2) Private Nuisance, (3) Breach of Covenant and Right to Quiet Enjoyment and Possession of the Premises, (4) Negligence, (5) Violation of Los Angeles County Eviction Moratorium – Harassment, (6) Intentional Infliction of Emotional Distress, (7) Negligent Infliction of Emotional Distress, (8) Violation of Civil Code Section 1940.2, and (9) Violation of Business & Professions Code §§ 17200, et seq.

On October 16, 2023, Defendants Marissa Aguilera, Maria Alvarez, Maria C. Alvarez, Gregorio Alvarez, and Carlos Alberto Gomez (Defendants) filed the instant demurrer and motion to strike. On November 22, 2023, Plaintiffs filed oppositions.[1] Defendants timely filed a reply on November 28, 2023.

A demurrer for sufficiency tests whether the complaint states a cause of action.¿(Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context.¿In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿(Hahn¿147 Cal.App.4th at 747.)

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id.¿§¿437.)¿“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman¿(1998) 63 Cal.App.4th 761, 768.)

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.)

Here, there is no meet and confer declaration. Still, failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (Code Civ. Proc., §§ 430.41, subd. (a)(4); 435.5 subd. (a)(4).)

Defendants contend that Plaintiffs do not mention the specific acts by each defendant to contribute to Plaintiffs’ damages. Defendants cite no authority supporting this position. Plaintiffs argue that this argument fails because they allege numerous facts in the FAC (paragraphs 1-13) pertaining to each Defendant.[2]

Upon reviewing the SAC, the court agrees with Plaintiffs that the SAC is not uncertain as to the Defendants. The SAC alleges that the Defendants either owned the property or held themselves out as property managers for the property. The court is not otherwise persuaded by Defendants’ argument.

Defendants contend that Plaintiffs did not address the court’s concerns at the demurrer to FAC because they changed their allegation from “These conditions constituted” to “These conditions continue to constitute.” Additionally, Defendants contend that Plaintiffs did not allege facts stating how they were damaged or injured, aside from restating Civil Code Sec. 3479. Plaintiffs argue they sufficiently alleged facts supporting private nuisance because they alleged electrical and plumbing issues were not addressed, Defendant harassed Plaintiffs, Defendant failed to provide a habitable dwelling, there were cameras pointed solely at Plaintiffs’ unit, mail and packages missing, and evidence that at least one Defendant entered Plaintiffs’ unit without permission or notice.

First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.

(Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176, reh'g denied (Oct. 25, 2022), review denied (Jan. 18, 2023).)

Upon reviewing the SAC, the court agrees with Defendants. Critically, the SAC, like the FAC, does not allege substantial actual damages, but states damages will be proved at trial. (SAC ¶ 10.) Additionally, the SAC fails to describe that the interference was of a “nature, duration, or amount to constitute unreasonable interference” to allow the court to determine whether the allegations meet the standard. This is unchanged from the FAC.

Accordingly, the court SUSTAINS the demurrer as to the second cause of action.

Fifth Cause of Action – Violation of LA County Eviction Moratorium-Harassment[3]

Defendants contend that Plaintiffs renamed the harassment claim to relocation violations, improperly squeezed in the prior Seventh Cause of Action to the Sixth Cause of Action, removed various requirements of the eviction moratorium rules, added incorrect paraphrasing of the moratorium requirements, and removed damages. Defendants additionally contend that Plaintiffs failed to allege facts of Defendants’ conduct that violated the moratorium section Plaintiffs did include. Plaintiffs argue that the FAC allegations for the fifth cause of action are now irrelevant and that the SAC must be read in its entirety.[4] Plaintiffs additionally argue that Defendants cannot demurrer to this cause of action again since the court previously overruled the demurrer.[5]

Upon reviewing the SAC, the court agrees with Plaintiffs that it has already overruled Defendants’ demurrer to this cause of action. The Fifth Cause of Action here is the Sixth Cause of Action from the FAC. The allegations are verbatim.

Accordingly, the court OVERRULES the Demurrer as to the Fifth Cause of Action.

Defendants contend that Plaintiffs provided no new facts supporting extreme or outrageous distress. Additionally, Defendants contend Plaintiffs’ fraud allegations are not specifically plead. Plaintiffs argue they sufficiently alleged facts supporting this cause of action.

Intentional infliction of emotional distress requires the Plaintiff to show “(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Conduct, to be ‘ “outrageous” ’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” ’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great[ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160.)

Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.)

Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” (Wong v. Tai Jing (2010) 189 Cal. App. 4th 1354, 1376.) Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1004.)

Upon reviewing the SAC, the court agrees with Plaintiffs that they have sufficiently alleged facts supporting a claim for IIED. In particular, the SAC alleges that Defendants created fake social media accounts using Plaintiff Rosales’ name and likeness to impersonate her, that they pointed cameras at the property that captured Plaintiff Rosales in her underwear on more than one occasion, coupled with threatening to negatively interfere with Plaintiff Rosales’ custody proceedings should she file suit against Defendants concerning the property. (SAC ¶¶ 13(c), (g), and (i).) An average member of the community would likely exclaim “Outrageous!” upon hearing such alleged conduct.

Defendants contend that Plaintiffs have made no changes between the FAC and the SAC as to these allegations. Specifically, Plaintiffs have not alleged which specific portions of the code Defendants allegedly violated and the conduct that constituted such violations. Additionally, Defendants contend Plaintiffs did not specifically allege fraud. Plaintiffs argue the court already overruled Defendants’ demurrer to this cause of action and that they did allege specific conduct that violates the code.

California Business and Professions Code section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code § 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610.)¿ “An unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.” (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.) A violation of other laws is deemed independently actionable under the UCL. (See Law Offices of Mathew Higbee v. Expungement Assistance Services (2013) 214 Cal.App.4th 544, 554.) “‘Virtually any law—federal, state or local—can serve as a predicate for a section 17200 action.’” (Id. (quoting Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1335).)¿

“A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619).

After a review of the SAC, the Court agrees with Defendants that Plaintiffs have failed to sufficiently allege a violation of Bus. & Prof. Code § 17200. Indeed, the allegations are identical to the FAC. Therefore, Plaintiffs did not allege what specific provisions of the code Defendants violated and the cause of action contains conclusory allegations.

Defendants move to strike various portions of the SAC referring to punitive damages. Specifically:

Defendants contend that Plaintiffs not sufficiently allege facts supporting a claim for punitive damages. Plaintiffs argue that they did and point to the allegations of Paragraph 13 in the SAC.

CCP §3294 states that “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Here, the FAC does not allege any conduct that would be considered oppressive, fraudulent, or malicious. For punitive damages to be applied, the defendant’s conduct must have been oppressive, malicious, or fraudulent. (Civil Code § 3294). CCP §3294 (c) defines malice as “(1) conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Under CCP §3294(c) oppression is defined as “(2) despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”

The Court agrees with Defendants that, except for the sixth cause of action, the SAC does not have allegations that would allow for punitive damages. The conduct may be troubling and wrong, but it would not be the type considered under Civil Code § 3294 as malicious, oppressive, or fraudulent. The conduct was not so despicable or so vile.

Motion to Strike Punitive Damages is GRANTED, except as to paragraph 33 and prayer for damages five..

1. Demurrer to the second, and ninth cause of action is SUSTAINED without leave to amend;

[1] Oppositions were due on or before November 20, 2023.

[2] The court disregards Plaintiffs arguments regarding causes of action not at issue.

[3] The memo labels this as the Fifth Cause of Action and indicates it’s the COA for Violation of LA County Eviction Moratorium – Failure to Pay Relocation. Defendants erroneously label this as the Sixth Cause of Action.

[4] Plaintiffs argue this applies to the Sixth Cause of Action, too.

[5] This is correct to the Sixth Cause of Action, but not to the Fifth Cause of Action.

[6] Defendants erroneously label this as the Seventh Cause of Action.